Wakilii

Lukwago Erias v Electoral Commission (Miscellaneous Cause No.393 of 2020)

High Court · [2021] UGHCCD 283 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for enforcement of fundamental human rights and freedoms under Article 50 of the Constitution challenging Electoral Commission's suspension of campaign meetings
Decision
Application dismissed as incompetently filed and without merit

Observed later treatment

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Holding

The High Court dismissed the application for enforcement of fundamental rights challenging the Electoral Commission's suspension of campaign meetings during the COVID-19 pandemic. The court held that the application was incompetently filed as it circumvented the constitutional procedure under Articles 61 and 64 requiring electoral complaints to be lodged first with the Electoral Commission. On the merits, the court held that while the suspension limited freedoms of expression, assembly, and association, the limitation was demonstrably justifiable under Article 43 given expert medical evidence of increased COVID-19 infections, particularly the 47% of national infections in Kampala, and the risk of super-spreading events at political gatherings.

Outcome

Application dismissed as incompetently filed and without merit

Facts

The applicant, Lord Mayoral candidate for Kampala, challenged the Electoral Commission's press statement of 26 December 2020 indefinitely suspending election campaign meetings in Kampala and other districts due to COVID-19. The Electoral Commission had initially allowed campaigns with limited attendance (70 persons, later 200) and strict standard operating procedures, but suspended physical meetings after medical experts warned of increased infections, with Kampala accounting for 47% of national COVID-19 cases and a spike to 1,199 cases reported in a single day on 8 December 2020. The applicant argued the suspension violated his rights to freedom of expression, assembly, and association, and that alternative virtual campaigns were impractical as the government had not distributed radios and televisions to the electorate. The Electoral Commission responded that the decision was based on medical expert advice showing political gatherings posed distinct super-spreading risks due to difficulty maintaining crowd discipline and SOPs, with emotions, singing, and dancing at political events making compliance harder than at other social gatherings.

Issues

  1. Whether the application is competently before the court under Article 50 of the Constitution or should have been brought as a complaint to the Electoral Commission under Articles 61 and 64.
  2. Whether the Electoral Commission's decision suspending campaign meetings in Kampala and other districts violates freedoms of expression, assembly, and association guaranteed under the Constitution.
  3. Whether the applicant was denied a right to a fair hearing before the decision to suspend campaign meetings was made.
  4. Whether the restrictions on campaign meetings are demonstrably justifiable in an open and democratic society under Article 43 of the Constitution.

Orders

  • Application dismissed.
  • No order as to costs.

Rules and key headnotes

Constitutional Law — Jurisdiction — Electoral Disputes — Article 50 Enforcement Applications — Proper Procedure
Article 50 of the Constitution providing for enforcement of fundamental rights and freedoms is not intended to circumvent established constitutional procedures for resolving electoral disputes. Where the Constitution provides a specific mechanism under Articles 61 and 64 for lodging electoral complaints with the Electoral Commission with an appeal to the High Court, a litigant cannot bypass that procedure by framing the dispute as an enforcement of rights application under Article 50.
Electoral Law — Jurisdiction — High Court — Appellate versus Original Jurisdiction
Under Articles 61(1)(f) and 64(1) of the Constitution, the High Court has appellate jurisdiction, not original jurisdiction, over electoral disputes arising before and during polling. Electoral complaints must first be lodged with the Electoral Commission, and only decisions of the Electoral Commission may be appealed to the High Court.
Constitutional Law — Fundamental Rights and Freedoms — Limitation of Rights — Article 43 Test
A limitation on constitutional rights and freedoms will only be acceptable under Article 43(2)(c) when it is: (1) prescribed by law; (2) necessary and proportionate; and (3) pursues a legitimate aim consistent with universal democratic values and principles that every free and democratic society adheres to.
Constitutional Law — Fundamental Rights — Freedom of Expression and Assembly — Limitation During Public Health Emergency
Restrictions on freedoms of expression, assembly, and association during election campaigns may be demonstrably justifiable under Article 43 where supported by expert medical evidence showing a grave public health risk. Political gatherings present distinguishable super-spreading risks compared to other social gatherings due to difficulty maintaining crowd discipline, standard operating procedures, and contact tracing, particularly where supporters engage in singing, screaming, and dancing.
Administrative Law — Natural Justice — Fair Hearing — Emergency Situations Exception
The right to be heard in administrative decisions may be suspended where prompt action needs to be taken in the interest of public safety, public health, or public morality. Where it is administratively impracticable to hold a hearing with all affected parties and urgent action is required to address an emergency, the need for immediate and rapid action may outweigh procedural safeguards.
Constitutional Law — Fair Hearing — Article 28 versus Article 42 — Administrative Decisions
Article 28 of the Constitution guaranteeing the right to a fair hearing applies to proceedings before independent and impartial courts or tribunals, not to administrative decision-making. Where a person is aggrieved by an administrative decision, the right protected is the right to just and fair treatment in administrative decisions, not the inviolable right to fair hearing under Article 28.
Electoral Law — Electoral Commission — Emergency Powers — Section 50 Electoral Commission Act
The Electoral Commission has residuary power under section 50 of the Electoral Commission Act to meet unforeseen contingencies or protect the constitutional goal of electoral democracy. This discretionary power must be exercised cautiously based on relevant matters and objective grounds, particularly in compelling circumstances supported by sufficient proof, and remains subject to judicial review for illegality, irrationality, or procedural impropriety.

Legislation cited (18)

Cases cited (18)

  • Ivan Samuel Ssebaduka v Chairman Electoral Commission & 4 Others (Supreme Court Presidential Petition No. 1 of 2020)
  • Hassan Lwabayi Mudiba & Waidha Fred Moses v Electoral Commission (High Court Miscellaneous Application No. 275 of 2018)
  • Lukwago Erias & 13 Others v Electoral Commission & 2 Others (High Court Miscellaneous Cause No. 431 of 2019)
  • Kasirye Zzimula Fred v Bazigatirawo Kibuuka Francis Amooti & Electoral Commission (Election Petition Appeal No. 1 of 2018)
  • Harrikisson v Attorney General (Trinidad and Tobago) [1980] AC 265
  • Charles Harry Twagira v Attorney General & 2 Others (Supreme Court Civil Appeal No. 4 of 2007)
  • Onyango Obbo & Another v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Muwanga Kivumbi v Attorney General (Constitutional Petition No. 9 of 2005)
  • Rubaramira Ruranga v Electoral Commission & Attorney General (Constitutional Petition No. 21 of 2006)
  • Thugitho Festo v Nebbi Municipal Council (High Court Miscellaneous Application No. 15 of 2017)
  • United Reflexology of Uganda Ltd v Hon Stephen Malinga Minister of Health (High Court HCT-00-CC-MC-12-2011)
  • Charles Onyango Obbo & Another v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Simon Dolan, Lauren Monks & AB v Secretary of State for Health and Social Care & Secretary of State for Education [2020] EWCA Civ 1605
  • R v Secretary of State for Health, ex parte Eastside Cheese Co [1999] 3 CMLR 123
  • S v Makwanyane and Another (CCT3/94) [1995] ZAAC 3
  • Lloyd v McMahon [1987] AC 625
  • R v Secretary of State for Transport ex parte Pegasus Holidays (London) Ltd [1988] 1 WLR 1990
  • R v Secretary of State for Social Services ex parte Association of Metropolitan Authorities [1986] 1 WLR 1

Full judgment

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Lukwago Erias v Electoral Commission (Miscellaneous Cause No.393 of 2020) [2021] UGHCCD 283 (11 January 2021)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.